Transcript Rehearings of Denial of Petitions for Review

“A Whole New World”:
Recent Developments in Texas
Mandamus Practice
by
D. Todd Smith
http://texasappellatelawblog.com
and
Kurt H. Kuhn
[email protected]
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
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
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.
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
TRAP 52.3
Revised 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.
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)
What the Court Thinks of Mandamus
Appellate courts cannot afford to grant interlocutory
review of every claim that a trial court has made a pretrial 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)
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).
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).
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).
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.
Inadequate Remedy at Law:



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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.
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).
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.
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)
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
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.
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.
In re McAllen Medical Center
The Case



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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
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)
The Attitude
Appellate courts cannot afford to grant interlocutory
review of every claim that a trial court has made a pretrial mistake. But we cannot afford to ignore them all
either.
In re McAllen Medical Ctr. (Tex. 2008)
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)
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)
A Whole New World?
Change in attitude
unlikely based on
election results
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.”
Possible Effects

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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
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
The Numbers
Texas Supreme Court
Year Filed Granted
%
+/- +/- Avg.
Granted Avg. Granted
Filed
+/- Avg.
Granted
%
2000
2001
276
255
6
6
2%
2%
+19
-2
-6
-6
-2%
-2%
2002
2003
2004
269
267
268
7
3
3
3%
1%
1%
+12
+10
+11
-5
-9
-9
-1%
-3%
-3%
2005
2006
255
235
22
24
9%
10%
-2
-22
+10
+12
+5%
+6%
2007 231
Total 2056
21
92
9%
4%
-26
+9
+5%
Texas Supreme Court
Average Filed
2000-2004
2005-2007
267
240
Average
Granted
5
22
Average %
Granted
2%
9%
Tyler, Beaumont, Waco and Houston [14th Dist.]
Courts of Appeals
Year
Filed
Granted
% Granted
+/- Avg.
Filed
+/- Avg.
Granted
+/- Avg.
Granted %
2000
229
27
12%
-8
-4
-1%
2001
229
17
7%
-8
-14
-6%
2002
225
25
11%
-12
-6
-2%
2003
253
20
8%
+16
-11
-5%
2004
220
29
13%
-17
-2
–
2005
245
38
16%
+8
+7
+3%
2006
256
41
16%
+19
+10
+3%
2007
239
49*
21%
+2
+18
+8%
Total
1896
246*
13%
* Five remain pending
Average Filed
Average Granted
Average % Granted
237
31
13%
Remaining Courts of Appeals
(minus Dallas)
Year
Filed
Granted
% Granted
+/- Avg.
Filed
+/- Avg.
Granted
+/- Avg.
Granted %
2000†
477
51
11%
-100
-4
+1%
2001
540
54
10%
-37
-1
–
2002
577
73
13%
–
+18
+3%
2003
623
43
7%
+46
-12
-3%
2004
644
56
9%
+67
+1
-1%
2005
593
60
10%
+16
+5
–
2006
585
55*
9%
+8
–
-1%
2007
579
48**
8%
+2
-7
-2%
Total
4618
440* **
10%
† 11th Court of Appeals numbers not reported
* Three remain pending
** Ten remain pending
Average Filed
Average Granted
Average % Granted
577
55
10%
Additional Sources of
Information
Feel free to contact me with any questions
Feel free to contact us with any questions
D. Todd Smith
[email protected]
http://texasappellatelawblog.com
(512) 329-2025
Kurt H. Kuhn
Brown McCarroll, L.L.P.
[email protected]
http://www.brownmccarroll.com
(512) 472-5456